Brutus and the
Court

June 30,
2005

The
U.S. Supreme Court has lately reminded us, in
its decisions about government seizures of private property and about
displays of the Ten Commandments, that it wields enormous powers that (1)
are not found in
the U.S.
Constitution, and (2) may be
abused with impunity. Its high time we reopened the old controversy
about judicial review.

Many controversies end
prematurely not because one side is necessarily right, but because it wins
elections, or a war, or just manages to get its view established as
conventional wisdom. Eventually, people just stop debating very debatable
things, and judicial review is one of these.

The argument over secession
ended when the North won the Civil War; the argument over the New Deal
ended because its programs were too popular to resist; Pearl Harbor
suddenly put a stop to the debate over whether the United States should get
involved in World War II. Yet the losers in these issues had strong points that
were never adequately answered.

In the same way, mere custom has
settled the debate over judicial review. Nearly all Americans have long taken
for granted that the U.S. Supreme Court has a virtual veto over all
legislation, Federal, state, and local. The Court has been claiming and
exercising this power for nearly two centuries, and few Americans see
anything questionable about it.

This means that one branch of
government, unelected, unaccountable to the people, and appointed for life,
may, at its whim, effectively change the meaning of the U.S. Constitution.
The president can veto any act of Congress, and Congress may override his
veto; but neither of the other branches has a similar control over the
Courts rulings, however wrong or even downright batty they may be.

The concept of checks and
balances, parroted in civics classes, doesnt apply to the
Supreme Court. The justices are appointed for life during good
behavior, and once appointed they are out of control. Furthermore,
most of the laws they strike down are state laws, not Federal ones, and the
state legislatures have no defense against them. So much for checks
and balances.

The
Court is often accused of
legislating from the bench; but the power to edit the
Constitution itself is far, far beyond any legislative power. In order to
correct the Courts mistakes, under the current system, its
necessary to undertake the huge effort of adding amendments to the
Constitution (or hoping that as the current justices die or retire, they may
be succeeded by others who will reverse their decisions  slim chance
of that!).

The power to strike down laws
isnt mentioned, or even hinted at, in the Constitution. The
Courts few powers are set forth in a couple of paragraphs. Judicial
review isnt among them.

So where did this sweeping power
come from? In Federalist No. 78, Alexander Hamilton, after assuring readers
that the Supreme Court would be the weakest and
least dangerous of the three branches, argued that it must
necessarily have the power to nullify acts of Congress that violate the
Constitution. This view has prevailed, but Hamilton didnt face the
problems that might arise if such a power were abused.

Others did, though. The
pseudonymous Brutus, arguing against ratification of the
Constitution, saw the danger of the judiciary very precisely and presciently:
the justices power would be altogether unprecedented in a
free country. They are to be rendered totally independent, both of the people
and the legislature, both with respect to their offices and salaries. No errors
they may commit can be corrected by any power above them, if any such
power there be, nor can they be removed from office for making ever so
many erroneous adjudications.

Brutus further warned that the
Federal judiciary might overpower state courts and legislatures. And he saw
nothing to prevent the Supreme Court from expanding its own power.

All Brutuss dire prophecies
have been fulfilled. Yet his arguments have never been refuted. Today we are
paying the price for ignoring them.

The Court is out of control, and
the only solution conservatives can think of is to appoint more
conservatives, who will use their power with restraint. But that power itself
is the problem. Giving it to better justices wont solve
it.

What will? Only, perhaps, a serious
threat of impeachment would make the Court think twice before abusing its
power. But this raises further problems, which Ill address in a future
column.

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